Legislative, Executive, and Judicial Powers

As they drafted and refined the Constitution, the Framers sought to create a government that had sufficient authority to pursue national objectives but that was not powerful enough to trample on the rights of the people. It was not a simple task. James Madison observed that in forming a government of “men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”¹

The national government is granted legislative, executive, and judicial authority by the Constitution. However, to oblige the government to “control itself,” these powers are separated, with a distinct branch of government being the primary holder of each power.

The Congress, made up of the House of Representatives and the Senate, is granted legislative authority, while executive authority is granted to the president and judicial power is granted to the Supreme Court. However, each branch is also given the ability to check and balance the actions of the other. For example, the president can veto legislation passed by the Congress, the Congress can investigate and even impeach the president, and the Courts can rule the actions of the president and Congress unconstitutional.

By providing auxiliary precautions, or ways that each branch can limit the others’ exercise of their powers, the Framers created a system in which powers are not absolutely separate. An auxiliary precaution affects the way legislative, executive, and judicial branches interact with each other by checking and balancing power between the separate branches of government. Indeed, the legislative, executive, and judicial powers are, to varying degrees, both separated and shared by the three branches of government.

The Framers believed it was critical to separate and check governmental authority in this manner because they knew the accumulation of power in one office or branch was dangerous. Far from allowing the concentration of power in one branch, the Constitution sets ambition against ambition to prevent any one branch of government from overstepping its bounds and infringing on the rights of the people.

The Constitution of the United States does not grant the president unlimited authority to run the national government. In fact, it gives only limited powers to the president and grants both the legislative and judicial branches powers that allow them to check and frustrate presidential power.

Many observers and political scientists have suggested that the presidency has grown so much in importance and power that the United States political system is presidentially centered and dominated. However, “the president is not the presidency. The presidency is not the government. [And] ours is not a presidential system.”²

Indeed, presidential authority is exercised in the context of a separated system, in which the powers of the national government are divided between three branches, each branch holding checks against the others. The following table emphasizes the reality that powers are as much shared as they are separated.

Further complicating the exercise of power is the fact that elections for national office holders are staggered. Presidential elections are every four years, Senate elections every six, and House elections every two. Because only one-third of Senate seats are contested every two years, it is impossible for all of the members of Congress and the president to be elected at the same time.

The voters who select the president, the members of the House, and one-third of the Senate in one election are not likely to have the same concerns and preferences as the voters who select new House members and another third of the Senate two years later. Moreover, because the president is elected by the entire nation but members of Congress are elected by the voters in the states or districts from which they come, members of Congress and the president do not represent the same constituencies.

The consequences of the separated system are significant. For example, it is not uncommon for members of Congress from solidly Democratic congressional districts to oppose Republican presidents at every turn. (The reverse is equally true.) The resulting lack of cooperation between members of Congress and the president can make it difficult for presidents to accomplish their goals.

Even more profoundly, conducting congressional elections on a state-by-state and district-by-district basis raises the possibility that the Congress and the president will be of opposite parties. In fact, since World War II, divided-party control of the legislative and executive branches has become the norm, not the exception. When a Republican president faces a Democratic Congress or a Democratic president faces a Republican Congress, the prospects for cooperation and consensus building between the two are diminished.

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1. Madison, James. The Federalist, no. 51.

2. Jones, Charles O. The Presidency in a Separated System. Washington, D.C.: Brookings, 1994, p. 1.